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This work was originally published as Jim Rossi, Lessons from the
Procedural Politics of the "Comprehensive" National Energy Policy
Act of 1992 in 19 Harv. Envtl. L. Rev. 195 1995.
Please note that the copyright in the Harvard Environmental Law
Review is held by the President and Fellows of Harvard College,
and that the copyright in the article is held by the author.
LESSONS FROM THE PROCEDURAL POLITICS OF
THE "COMPREHENSIVE" NATIONAL ENERGY
POLICY ACT OF 1992
Jim Rossi*
The invasion of Kuwait by Saddam Hussein in the fall of
1990, the subsequent Persian Gulf Crisis, and the U.S.-led Operation Desert Storm provoked fears of oil price shocks and widespread calls for a new national energy policy in the winter of
1990-91. Energy issues had not so touched the public since the
energy crisis of the 1970s, which prompted Congress to pass energy legislation based on President Carter's energy plan.' Reacting
to the revived public awareness of the need for a federal solution,
President Bush, in his 1991 State of the Union Address, announced
his intention to propose a plan to promote "energy conservation
and efficiency, increased development, and greater use of alternative fuels."'2 He promised to send to Congress a "detailed series of
proposals."3 Many expected that Bush's initiatives would signal a
new direction for national energy policy, particularly in light of the
Clean Air Act Amendments of 1990, which promoted major energy
* Visiting Assistant Professor, Chicago-Kent College of Law, Illinois Institute of
Technology. LL.M., Yale Law School, 1994; J.D., University of Iowa College of Law,
1991; B.S., Arizona State University, Tempe, 1988. I am grateful to Fred Bosselman, Kate
Stith, and Charles Tiefer for their comments on a previous draft.
1. The Federal government first recognized the need for a national energy policy in
the 1930s under the reformist administration of Franklin D. Roosevelt. See ELLIS W.
HAWLEY, THE NEW DEAL AND THE PROBLEM OF MONOPOLY: A STUDY IN EcONOMIC
AMBIVALENCE 325-43 (1966). National energy policy has been reviewed several times
since then. In 1971 the Senate Energy and Natural Resources Committee, under the
leadership of Senators Henry Jackson (D-Wash.) and Jennings Randolph (D-W. Va.)
commenced the Senate's National Fuels and Energy Policy Study to address the creation
of an integrated energy policy. The executive branch responded in 1974 with its own
recommendations in "Project Independence," largely followed by Presidents Nixon and
Ford. Carter's 1977 National Energy Plan placed a new emphasis on energy conservation
and the substitution of indigenous coal for oil and natural gas. National energy policy
initially met a major setback with President Reagan, who, over the strong objections of
Congress, proposed abolishing the Department of Energy. Following the Senate's quick
rejection of Reagan's proposal, the administration sought to decontrol oil prices, leading
to decreases in energy prices over the 1980s and, concomitantly, little attention to energy
issues. For a criticism of administration-led energy strategies, see Chandler L. Van Orman,
The NationalEnergy Strategy-An Illusive Questfor Energy Security, 13 ENERGY L.J. 251
(1992).
2. 137 CONG. REC. S1215 (daily ed. Jan. 29, 1991) (statement of President Bush).
3. Id.
196
HarvardEnvironmental Law Review
[Vol. 19:195
initiatives including the use of transportation fuels other than gaso4
line.
Following the brief Gulf War, the public's demand in energy
policy began to fade quickly. Bush had to release his plan soon to
gain any political capital from it, but the administration's proposal,
when finally released in late February, was of little influence.5
By the time Bush's plan was simultaneously introduced as
bills to both houses of Congress on March 6, other proposals in
the Senate and the House of Representatives had already stolen the
show. These legislative proposals comprised the most serious and
comprehensive attempts at rethinking U.S. energy policy since Carter's National Energy Plan had come before Congress in 1977.
Senator Bennett Johnston, the Louisiana Democrat who chaired the
Senate Energy and Natural Resources Committee, had proposed his
own comprehensive energy bill on February 5. His bill, S.341, was
characterized as a proposal "to reduce the Nation's dependence on
imported oil, [and] to provide for the energy security of the Nation."' 6 Representative Philip R. Sharp, an Indiana Democrat who
chaired the House Energy and Commerce Committee's Subcommittee on Energy and Power, simultaneously introduced a package
of five energy bills: H.R. 776, H.R. 777, H.R. 778, H.R. 779, and
7
H.R. 780.
Following nearly eighteen months of consideration, Congress
passed the Comprehensive National Energy Policy Act of 1992
("EPAct"), 8 based primarily on Sharp's House package. Although
the EPAct was one of the most significant bills to come out of the
102d Congress, the EPAct is hardly "comprehensive" Congress
took up the bill in an atmosphere of crisis, trading systematic and
methodical deliberation for expediency. The core majority strongly
supported the legislation, allowing special interests to influence its
content without diluting its base of support. The result was the
4. Pub. L. No. 101-549, 104 Stat. 2399 (1990) (codified as amended at 42 U.S.C.
§§ 7401-7626 (Supp. V 1993)).
5. See infra notes 17-19 and accompanying text.
6. 137
bill. Id.
7. 137
CONG.
Rc. S1505 (daily ed. Feb. 5, 1991). Senator Wallop cosponsored the
CONG.
REc. E382 (daily ed. Feb. 4, 1991). Presumably, Sharp's package was
structured so as to allow members to select from proposals on a variety of issues and to
avoid a presidential veto on the entire package.
8. Pub. L. No. 102-486, 106 Stat. 2776 (1992).
1995]
National Energy Policy Act
omission of many important energy and environmental issues from
the finished product.
This Article examines the political and procedural history of
the EPAct in order to arrive at some general lessons and recommendations regarding congressional formation of energy policy.9 At
least two commentators on the EPAct praise it as the "second
generation" of federal energy policy, based in laws that achieve
"their mandates more by consensus than coercion."10 The EPAct's
history, however, was far from smooth. Procedural obstacles, such
as filibuster, inter-committee conflict, and inter-chamber conflict,
led many to declare the EPAct dead on several occasions prior to
its passage."
While procedural tactics often brought the bills that would
become the EPAct to the brink of disaster, the use of congressional
procedure by supporters also held the EPAct together and kept its
momentum strong despite the fading of energy issues from public
attention. The EPAct's history suggests that consensus on energy
issues could not have been achieved absent procedural devices
which: (1) kept the bill focused on narrow issues; (2) precluded
amendments and protected certain provisions; and (3) bypassed
many strongly held but isolated interests. This Article traces the
history of the EPAct and discusses these procedural mechanisms
and, in particular, how they formed consensus by narrowing the
issues the EPAct addressed. This Article concludes by examining
what the EPAct's procedural history has to teach about developing
more comprehensive, sustainable, and sound policies in future energy legislation.
9. For a discussion of the EPAct's substantive content, discussed only briefly in this
Article, see GUIDE TO THE ENERGY POLICY ACT OF 1992 (Dan R. Williams & Larry Good
eds., 1994); Bernard Black & Richard J. Pierce, The Choice Between Markets and Central
Planning in Regulating the U.S. Electricity Industry, 93 COLUM. L. REV. 1339 (1993);
William Conway & Allen Stayman, It Takes Energy, ENVIRONMENTAL FORUM, July/Aug.
1993, at 12; and Jeffrey Watkins & Douglas Smith, The Energy Policy Act of 1992-A
Watershed for Competition in the Wholesale Power Market, 10
YALE J. ON
REG. 447
(1993).
10. Conway & Stayman, supra note 9, at 12.
11. See ANWR Drilling Kills Energy Bill, 1991 CONG. Q. ALMANAC 195, 195
("Although many senators predicted that some version of the energy bill would return in
1992, the [filibuster] vote [on S. 1220] did reveal daunting divisions on energy policy and
threatened the prospects for a major rewrite of federal energy policy:').
HarvardEnvironmental Law Review
[Vol. 19:195
I. THE SENATE SIDE-STEPS THE PRESIDENT'S PLAN, BUT
FILIBUSTER KEEPS IT FROM WALKING FAR
Senator Johnston's staff on the Energy and Natural Resources
Committee had been considering various energy proposals for several years when President Bush announced in January 1991 that he
would shortly propose energy legislation to Congress.' 2 Johnston
had previously directed his staff to prepare a comprehensive energy
bill, 13 probably in hopes of pre-empting the administration's anticipated proposal. On February 5, 1991, within days of President
Bush's address, Johnston, joined by Ranking Minority Member
Malcolm Wallop from Wyoming, introduced S.341 ("National Energy Security Act"), later amended and reported as S.1220.14
Shortly thereafter, on February 18, Department of Energy ("DOE")
Secretary James D. Watkins released a 214-page "National Energy
Strategy." 15 The Bush administration had been coordinating its plan
for over a year, but announcement of its release coincidentally
corresponded with the peak of the Gulf crisis.' 6 The final version
of the administration's plan was introduced in Congress in March
as S.570 and H.R. 1301.17 But the administration's proposals were
inadequate and unpopular with key constituencies; free market advocates had stripped conservation provisions from the plan, and
environmental groups attacked the plan, branding it "Drain Amer18
ica First."'
Upon introduction, Johnston's bill, S. 341, was immediately
referred to his Energy and Natural Resources Committee, which
12. 137 CONG. REc. S1215-17 (daily ed. Jan. 29, 1991) (statement of President
Bush).
13. See Mike Mills, Johnston Mixes Oil and Gas, 49 CONG. Q. WKLY. REP. 365,
365 (1991). This task was simpler for Johnston's staff than one might normally anticipate.
When Congress was considering the 1990 Clean Air Act Amendments, Johnston's committee had proceeded with consideration of several bills addressing oil drilling, renewable
power, fuel efficiency, and conservation measures. These bills and their deliberative
remnants served as a framework to structure the staff's task. See id.
14. See 137 CONG. REC. S1505 (daily ed. Feb. 5, 1991).
15. U.S. DEPARTMENT OF ENERGY, NATIONAL ENERGY STRATEGY: POWERFUL IDEAS
FOR AMERICA 2 (1991).
16. The Gulf War began on the evening of January 16, 1991. See Carroll J. Doherty,
Congress Applauds Presidentfrom Sidelines of War, 49 CONG. Q. WKLY. REP. 176, 176
(1991).
17. 137 CONG. REc. S2771 (daily ed. Mar. 6, 1991) (S.570, sponsored by Senators
Johnston and Wallop); 137 CONG. REc. H1455 (daily ed. Mar. 6, 1991) (H.R. 1301,
sponsored by Representatives Dingell, Lent, and Moorhead).
18. Id.
1995]
National Energy Policy Act
199
hastily proceeded to consider the bill in hearings commencing on
February 26.19 Two issues were a source of heated debate among
witnesses before the committee: (1) provisions of the bill that would
have allowed oil and natural gas drilling in the Arctic National Wildlife Refuge ("ANWR"); and (2) proposed amendments to strengthen
gas mileage standards known as Corporate Average Fuel Economy
("CAFE"). 20 On May 23, the committee ordered reported a substitute bill, S. 1220, in lieu of S. 341.21 Despite committee members'
attempts to strike ANWR drilling from the bill2 2 and to strengthen
CAFE standards, 23 the reported bill contained few modifications to
the originally proposed ANWR provisions or to the original CAFE
provision, which directed the Secretary of Transportation to set
"maximum feasible" CAFE standards for 1996 and 2001 but did
24
not specify numerical targets.
Senate Bill 1120 met mixed reactions coming out of Johnston's
committee. The Bush administration, a strong supporter of ANWR
drilling and opponent of increased CAFE standards, praised the bill
as the most comprehensive energy legislation that had come out of
the committee in over ten years. 25 But environmental groups and
many Democrats, extremely critical of the bill's ANWR drilling
that the bill would
provisions and its weak CAFE standards, 2 hoped
6
floor.
Senate
the
on
die
and
lose support
Johnston had hoped to get the bill to the Senate floor in June, when
the interest in energy policy generated by the Gulf War was still
strong.27 However, the inaction of key Senate leaders and growing
opposition among individual Senators thwarted this possibility. Majority Leader George J. Mitchell of Maine opposed ANWR drilling
and was a co-sponsor (with Democratic Senator Richard H. Bryan
19. See 137 CONG. REc. D182 (daily ed. Feb. 26, 1991).
20. See Holly Idelson, Johnston's Strategy: Move Fast to Keep Bill Lean and Alive,
49 CONG. Q. WKLY. REP. 971, 971 (1991).
21. 137 CONG. REC. D654 (daily ed. May 23, 1991).
22. See James E. Satterfield, A Tale of Sound and Fury: The Environmental Record
of the 102d Congress, 23 ENVTL. L. REP. 10015, 10017 (1993).
23. See id. Johnston had tried to increase the CAFE standards in his bill in order
to reach a compromise with opponents of ANWR drilling. See Idelson, supra note 20, at
972.
24. See ANWR Drilling Kills Energy Bill, supra note 11, at 200.
25. See id, at 201 (noting that DOE's Deputy Secretary Henson Moore, who had
been present at most of the committee sessions, characterized the legislation as "the best
we've seen in 20 years!').
26. See id.
27. See id.
200
HarvardEnvironmental Law Review
[Vol. 19:195
of Nevada) of a bill to boost gas mileage mandates forty percent
by 2001 (S. 279).28 As director of the Senate's legislative schedule,
Mitchell alone could have refused to commit to assist Johnston in
getting the bill to the floor in June. The opposition of other Senators, however, gave Mitchell an excuse for remaining non-committal on the bill's consideration. In late June, several Democrats
staged an assault on the bill from the Senate gallery, primarily
protesting ANWR drilling.2 9 Further, Montana Senator Max Baucus, the Chair of the Environment and Public Works Committee,
with jurisdiction over several portions of the bill, opposed bringing
it to the floor until his committee was granted referral, a referral
Johnston had opposed. 0 These disagreements made Johnston pessimistic about the bill's chances of reaching the floor before the
31
end of the summer recess.
Delayed consideration of S. 1220 diminished the chances of
its passage. On July 24, President Bush, aware that the sense of
urgency regarding energy issues brought on by the Gulf War was
dying off, appeared before a group of energy executives to praise
S. 1220 and to urge that it go to the floor immediately after the
August recess. 32 By the end of the summer recess, however, more
than a handful of Democrats were complaining that the package,
particularly ANWR drilling (which President Bush was now protecting with a veto threat), was advancing the interests of Bush and
the oil industry, not the nation.3 3 Democratic critics, lobbied heavily by environmental and consumer groups (and joined by unlikely
allies in the electric utility industry, which opposed the bill's pro34
visions to restructure the industry), staged a filibuster in the fall.
A Senate filibuster requires a bill's supporters to find sixty votes
in order to end debate on a measure; this allows opposition Senators to influence significantly and sometimes kill a bill even if they
35
do not otherwise have majority support for their position.
28. See id.
29. See id. at 201. The Senators included Baucus, Harkin, Lautenberg, Lieberman,
Metzenbaum, Bradley, Bryan, and Wellstone. Id.
30. See id.
31. See Rhetorical War Breaks Out, 49 CONG. Q. WKLY. REP. 1825, 1825 (1991).
32. See ANWR Drilling Kills Energy Bill, supra note 11, at 202.
33. See id. at 207.
34. See id.
35. See CHARLES TIEFER, CONGRESSIONAL PRACTICE AND PROCEDURE: A REFERENCE, RESEARCH, AND LEGISLATIVE GUIDE 691-92 (1989). For the constitutionality of
1995]
National Energy Policy Act
Majority Leader Mitchell attempted to proceed by unanimous
36
consent to consider the bill on October 30, but Baucus objected.
Anticipating a fight, Mitchell had already prepared a cloture motion,3 7 and on October 31 the Senate began debate on the motion
to proceed to consideration of S. 1220.38
Floor debate, dominated primarily by discussions of ANWR
drilling, contained an exchange between Senators Johnston and
Wirth regarding filibuster tactics which would unintentionally anticipate, and perhaps influence, the content of the bill's successor
before the Senate.3 9 Wirth, an opponent of ANWR drilling and
advocate of stringent CAFE standards, wanted the sixteen-title bill
sent back to the Energy and Natural Resources Committee with
instructions to re-report it to the Senate as a fourteen-title bill, with
ANWR and CAFE as separate bills.4 0 When Johnston lambasted
Wirth for threatening the bill with filibuster, Wirth invoked an
incident from the previous year in which Johnston had successfully
threatened filibuster of a CAFE standard bill:
It is very simple. The bill in front of us does not have 14 titles.
It has 16. One title is on the Arctic Refuge and one title is on
CAFE. That is where we are. I cannot remove the Arctic title of
the bill with 41 votes. I am deprived of my ability to filibuster
the Arctic. That is very simple. Those are the rules of the Senate.
I believe that the Senator from Colorado and others have a
perfect right to use the filibuster just as the Chairman of the
Energy Committee used the filibuster to help kill [a 1990]
CAFE [standard bill] .... 41
Wirth, however, was unable to strong-arm Johnston and his coalition into withdrawing their motion for consideration and referring
the bill back to the committee.42 A cloture vote on the bill had been
Senate filibuster rules, see Thomas Geoghegan, In the Senate, the Dole FilibusterBusts
the Designs of the Founding Fathers,WASH. POST, Sept. 4, 1994, at Cl.
36. See 137 CONG. REc. S15,542 (daily ed. Oct. 30, 1991).
37. See id. Cloture motions, if approved, cause various limits to come into effect:
debate must end within 30 hours, no Senator may debate more than one hour at a time,
only germane amendments may be offered, and the matter at issue becomes the pending
question. Cloture is normally used to end filibusters. See TEFER, supra note 35, at 692.
38. See id. at S15,600 (daily ed. Oct. 31, 1991).
39. See infra notes 72-74 and accompanying text.
40. See id. at S 15,679-80.
41. Id. at S15,680.
42. See id. at S15,681. Of course, as Wirth observed, he could have offered a motion
HarvardEnvironmental Law Review
202
[Vol. 19:195
scheduled for the next morning, and Johnston believed that he
43
could secure the sixty votes necessary to invoke cloture.
On the next morning, November 1, the Senate continued consideration of the motion to proceed. 44 Following an hour of debate,
the presiding officer laid the pending cloture motion before the
46
Senate for a vote. 45 The roll call was fifty yeas to forty-four nays.
The opponents of the bill had four votes more than they needed to
filibuster. Most of the votes against cloture had come from opponents of ANWR drilling. 47 However, some groups opposed to restructuring the electric utility industry or in favor of raising CAFE
standards also voted to block the bill. 48 A few brief statements
followed the failed cloture vote, but the motion to proceed was
49
withdrawn shortly thereafter.
Had Mitchell supported the bill earlier, S. 1220 would probably have gone to the floor in June when momentum from the Gulf
War might well have been sufficient to avoid filibuster. Alternatively, had the Senate leadership foreseen a successful filibuster
during the motion to proceed, the bill's defeat could probably have
been avoided. Johnston could have requested the presiding officer
to refer the bill back to the Energy and Natural Resources Committee with instructions to strip the ANWR drilling and CAFE
standard titles. This would have adequately addressed Wirth's concerns and avoided the filibuster. As consideration of the bill's successor before the Senate suggests, 50 such a measure would have
virtually guaranteed passage.
The defeat of S. 1220 by filibuster, though, would prove important to securing final passage of the EPAct. S. 1220 became a
"sacrificial lamb" early in the legislative process. It died, not on a
filibuster of the substantive bill, but on a filibuster of a motion to
to strike the ANWR title; if he had had 51 votes, this motion would have been successful.
See id.
43. See Holly Idelson, Johnston's Bill Headed to Floor Amid DemocraticDisunity,
49 CONG. Q. WKLY. REP. 3119, 3121 (1991).
44. See 137 CONG. Rac. S15,733 (daily ed. Nov. 1, 1991).
45. See id. at S15,754.
46.
47.
48.
CONG. Q.
137 CONG. REC. S15,754-55 (daily ed. Nov. 1, 1991).
See ANWR Drilling Kills Energy Bill, supra note 11, at 208,
See Holly Idelson, Senate Filibuster Deals Blow to Plan for New Policy, 49
WKLY. REP. 3191, 3191 (1991).
49. See 137 CONG. REC. S15,788 (daily ed. Nov. 1, 1991) (statement of Sen.
Mitchell).
50. See infra part II.A.
19951
National Energy Policy Act
'203
proceed, allowing the Senate leadership to test the strength of the
filibusterer's coalition without a full-blown legislative failure. Its
death alone would not be sufficient to deter individual Senators
from threatening filibuster, but from this time forward it would be
more difficult politically for an individual Senator to bring a bill
to the brink of disaster with a filibuster; the memory of S. 1220
would spur the Senate leadership into greater efforts at keeping
members in line. Democrats, already primarily responsible for killing one energy bill, would hesitate before threatening filibuster on
future bills) Republicans, under growing criticism for their failure
to back domestic regulatory programs, would also find filibuster
politically costly. Thus, S. 1220's defeat would continue to lurk in
the background as the Senate took up future legislative proposals,
serving as a constant reminder of the political costs of filibuster.
II.
REGROUPING IN THE SENATE / WORKING BEHIND.THE
SCENES IN THE HOUSE
The defeat of S. 1220 was a blow to Johnston. The Bush
administration, which supported the Johnston bill once it became
clear that passage of the President's proposals was hopeless, urged
another vote soon.5 1 Johnston, however, was steadfast: the November 1 vote meant that S. 1220 had sunk.52 The defeated cloture vote
led to widespread skepticism that the 102d Congress would successfully pass any energy bill. 53
But, even though the Bush proposals had died quickly and
public support for a comprehensive energy strategy was waning,
members of Congress and the administration knew that failure to
pass a bill could be politically dangerous. The administration, facing increasing election-year criticism that it had no domestic program, desperately hoped for a bill to counter its critics. 54 Democrats in Congress, under attack for "gridlock" in the institution they
51. See Idelson, supra note 48, at 3191.
52. See id.
53. See id. (noting that, although supporters of the filibuster claimed that they had
created an opportunity for a successful energy bill to emerge, it was unclear whether they
could revive the numbers or intensity on behalf of a new proposal).
54. For an insider's discussion of what happened to the domestic agenda during the
Bush years, see CHARLES KOLB, WHITE HousE DAZE: THE UNMAKING OF DOMESTIC
POLICY IN THE BUSH YEARS (1993).
HarvardEnvironmental Law Review
[Vol. 19:195
controlled, wanted to prove that they could actually produce a
comprehensive strategy, not just talk about one.5 5 Thus, the focus
shifted to alternative proposals in the Senate and House.
In January 1992, Johnston introduced a leaner energy bill,
S. 2166, which retained the core of his earlier bill without ANWR
or CAFE.5 6 It is not altogether clear why Johnston killed S. 1220
and introduced a new bill; he could have simply stripped the controversial provisions from the earlier bill. Two explanations seem
plausible. First, Johnston may have been disappointed that Democrats had killed S. 1220 and, with an election year nearing, he may
have been determined to produce a bill from the bottom up, based
upon consensus within the Democratic party-a bill for which
Republicans could not claim credit. Second, Johnston may have
offered S. 1220 as a "sacrificial lamb" to make opposition to alternative proposals by individual Senators more difficult politically.
Whatever Johnston's intentions, S. 2166 sailed through the Senate,
57
passing in February.
A. The Senate Passes a New Bill Without ANWR or CAFE
On January 29, 1992, Senator Johnston introduced S. 2166
without objection.5 8 It was anticipated that debate would start quickly
on the bill, which retained the core of S. 1220 without the ANWR
59
or CAFE provisions.
In order to avoid committee markup and the accompanying
delay in consideration of and decline in enthusiasm for energy
legislation, Johnston introduced the bill through a strategic, and
rarely used, procedural device: Rule XIV, which allowed the bill
to avoid referral to Energy and Natural Resources and other jurisdictional committees.6 0 Usage of Rule XIV allowed the bill to
move outside of the normal channels of committee referral. Under
55. See Holly Idelson, Lingering Controversies Stall Rewrite of Energy Bill, 49
CONG. Q. WrLy. REP. 3274, 3274 (1991).
56. See Johnston Offers Trimmed-Down Version of Energy Bill, 50 CoNG. Q. WKLY.
REP. 248, 248 (1992).
57. See infra part II.A.
58. 138 CONG. Rac. D35 (daily ed. Jan. 29, 1992).
59. See Johnston Offers Trimmed-Down Version of Energy Bill, snpra note 56, at
248.
60. See id. Although the Congressional Record contains no discussion of the specific
rule by which Johnston introduced the bill, the procedure followed in placing the bill on
1995]
National Energy Policy Act
205
Rule XIV, if objection is made to proceeding with the bill, the
Chair does not refer the bill to jurisdictional committees, as would
normally be the case, but places it on the Senate's Calendar.6 1 Once
a bill is on the Senate's Calendar, it still requires a motion to
proceed before it comes to the Senate for consideration, providing
opponents of a bill an opportunity to escalate an early fight against
the bill.62 Bypassing committee referral, however, prevents the political and jurisdictional fights which a refusal of referral might
otherwise provoke, and avoids the possibility of a hostile committee holding a bill captive or gutting it. Rule XIV thus keeps a bill
from being delayed for long, particularly if it is invoked with
63
leadership support.
Historically, Senators have used Rule XIV only sparingly, since
it has been viewed as less legitimate than the normal path of
committee referral. 64 In the 1950s and 1960s, liberal Senators used
Rule XIV to avoid referral of civil rights bills to the Judiciary
Committee, which was controlled by civil rights opponents like
Chairman Eastland of Mississippi. 65 For example, Rule XIV was
invoked to place the Civil Rights Bills of 1957 and 1964 on the
Senate Calendar.66 In recent years, the Rule XIV technique has also
the Senate Calendar is unique to Rule XIV. Rule XIV is discussed in TEFER, supra note
35, at 593.
61. See TIEFER, supra note 35, at 593. Rule XIV provides that "every bill and joint
resolution introduced on leave, and every bill and joint resolution of the House of
Representatives which shall have received a first and second reading without being referred
to a committee, shall, if objection is made to further proceeding thereon, be placed on the
calendar." Id. at 593-94.
62. See id. at 565.
63. See id. at 594. Even a putative assertion of jurisdiction can delay placing a bill
on the Senate's Calendar for consideration. An assertion of jurisdiction by one committee
could trigger a similar assertion by another jurisdictional committee, leading to referral to
the winner and the possibility of an appeal. Rule XVII, for example, provides:
Except as provided in paragraph 3, in any case in which a controversy arises
as to the jurisdiction of any committee with respect to any proposed legislation, the question of jurisdiction shall be decided by the presiding officer,
without debate, in favor of the committee which has jurisdiction over the
subject matter which predominates in such proposed legislation; but such
decision shall be subject to an appeal.
FLOYD M. RIDDICK & ALAN S. FRUMIN, RIDDICK'S SENATE PROCEDURE: PRECEDENTS AND
PRtcrlcE 1150 (1992).
64. See TIEFER, supra note 35, at 595 n.111.
65. Sie id. at 595.
66. Id. Usage of Rule XIV to move the 1957 bill reversed Senate precedent and
settled that Rule XXV, which provided for mandatory reference of bills, did not supersede
or annul the Rule XIV technique. See RIDDICK & FRUMIN, supra note 63, at 1157.
206
Harvard Environmental Law Review
[Vol. 19:195
been used to move
legislation addressing other issues, including
67
some minor bills.
Johnston's introduction of S. 2166 via Rule XIV was important in ensuring quick floor consideration of the bill. Even though
Johnston's Energy and Natural Resources Committee clearly had
jurisdiction over the bill, Johnston's use of Rule XIV avoided
referral of S. 2166 to Baucus' Environment and Public Works Committee, which had sought referral of the earlier Senate bill, S. 1220.68
Escaping Environment and Public Works was important because
Baucus supported strong CAFE standards, which Johnston had not
included in the streamlined bill. If Environment and Public Works
proposed amendments on CAFE, their committees would have asserted jurisdiction over the bill and proposed amendments on other
issues, such as ANWR drilling. Referral of the bill would have
revived the very issues Johnston had avoided. by removing CAFE
and ANWR from S. 1220. Even without Baucus' previous request
for referral, Johnston might well have invoked Rule XIV as a way
of avoiding referral to his own committee and thus hastening the
bill's consideration. It is not unprecedented for a committee chair
to use Rule XIV as a way of quickly moving a favored bill. 69
On January 31, two days after Johnston invoked Rule XIV,
Majority Leader Mitchell moved to proceed to the bill without
objection and then immediately proposed a cloture motion. 70 By
unanimous consent, the Senate agreed to vote on the motion the
morning of February 4 and to waive the mandatory live quorum
7
required by Rule XXII. 1
The bill, which reflected a compromise, 72 was essentially what
Senator Wirth had asked for in filibustering S. 1220. As Senator
Johnston stated:
67. For instance, it was used to place a barge waterway fee bill on the Calendar
instead of referring it to a hostile committee. See TIEFER, supra note 35, at 597 n.116
(citing T.R. REID, CONGRESSIONAL ODYSsEy: THE SAGA OF A SENATE BILL 92 (1980)).
68. See supra note 30 and accompanying text.
69. In 1982, Majority Leader Baker used Rule XIV to move several bills on behalf
of Senator Thurmond, the Judiciary Committee's Chair. See TIEFER, supra note 35, at 597.
Senator Robert Byrd responded to Baker's proposal by noting "there is no way-no
way-that anybody on my side of the aisle can prevent the placing of the President's crime
package and the bill which Mr. Thurmond introduced on insanity from going on the
calendar." 128 CONG. REC. P23,364 (1982).
70. See 138 CONG. REc. S792 (daily ed. Jan. 31, 1992).
71. 138 CONG. REC. S792-93 (daily ed. Jan. 31, 1992).
72. See Holly Idelson, Johnston Works to Clear Pathfor Revamped Energy Bill, 50
1995]
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National Energy Policy Act
S. 2166 is the successor bill to S. 1220, the comprehensive
national energy policy bill. I am pleased to say, Mr. President,
at long last it now appears that the Senate is not only on the
threshold of taking up the bill, but is on the threshold of
approving a comprehensive national energy policy.
Mr. President, S. 2166 is, in all respects, identical to S. 1220,
in that we have eliminated completely the Arctic National
Wildlife Refuge drilling provisions; we have eliminated completely the CAFE, or corporate average fuel economy provisions; we have eliminated the waste oil provisions; and we have
eliminated the so-called WEPCO fix, dealing with the Clean Air
Act.
There were initially 16 titles in this bill. We have eliminated 2
and parts of 2 others so that, in effect, we still have a 14 title
is comprehensive, which is balanced, which will be
bill, which
73
effective.
On February 4, following an hour of debate, the Senate agreed
by a 90-5 vote to close debate on the motion to proceed to consider
74
the bill.
Before the cloture vote, Johnston invited Alaskan Senators to
offer an amendment restoring the ANW-R drilling provision, although he warned that such an amendment, if approved, could
doom the bill. 75 The Alaska Senators, Murkowski and Stevens, both
Republicans, wanted to ensure that the vote on their proposed
amendment took place at a time and in a manner which allowed
them fair consideration. 76 Murkowski had "stressed the need for a
clean vote on the merits of opening the refuge, rather than a vote
softened by parliamentary fuzz-for instance, on a motion to table
the drilling proposal."' 77 Backed by Senator Dole and the Republican Caucus, Murkowski and Stevens threatened to delay action on
the energy bill unless the entire Senate agreed to debate ANWR
CONG. Q. WKLY. REP. 297, 297 (1992). "Johnston reportedly agreed to drop the Arctic
drilling provision from his bill and keep it out. In exchange, the dissident Democrats
agreed not to block the bill from the floor or try to append higher fuel efficiency
mandates" Id.
73. 138 CONG. REC. S822 (daily ed. Feb. 3, 1992).
74. See 138 CONG. REc. S860 (daily ed. Feb. 4, 1992).
75. See 138 CONG. Rc. 8823 (daily ed. Feb. 3, 1992).
76. See Holly Idelson, Arctic Wildlife Refuge Redux, 50 CONG.
298 (1992).
77. Id.
Q. WKLY.REP. 298,
208
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drilling for four hours and then take an immediate up or down vote
on the matter.78 Senator Baucus and five unnamed Democrats objected, 79 "leaving the Republicans in the politically chancy position
of seemingly obstructing debate on an energy bill."80 The Republicans, through Senator Dole, retreated and agreed to let debate on
the bill proceed without a roll-call vote on ANWR.81
Senators proposed dozens of amendments to S.2166. One of
the biggest battles was fought over two offshore oil and gas drilling
amendments sponsored by Senator Graham of Florida: one would
have extended a moratorium on new drilling leases to Florida's
coast and direct the federal government to buy back existing leases;
the other would have rewritten leasing policy for all offshore areas,
allowing cancellation of leases which seriously affect the environment.8 2 Johnston proposed a substitute to Graham's first amendment which contained a temporary moratorium and lease buyback
for the South Florida coast only; his substitute passed by a vote of
53-45.83 Johnston killed Graham's second amendment with a mo-
tion to table which was barely approved by a 51-47 vote.8 4 As the
bill neared its final vote, the motion to table proved to be an effective
mechanism for Johnston to dispose of several other amendments. 5
On February 19, S. 2166 overwhelmingly passed the Senate
by a 94-4 vote. 6 Only four Senators voted against the bill: Senator
Graham, Minnesota Senators Durenberger and Wellstone, and New
Hampshire Senator Robert C. Smith.17 The final Senate bill won the
endorsement of the administration, despite a pending veto threat
over-the bill's failure to address ANWR drilling.88 The reaction of
78. See 138 CONG. REc. S901 (daily ed. Feb. 4, 1992).
79. Id.
80. Idelson, supra note 76, at 298.
81. See 138 CONG. REc. S906 (daily ed. Feb. 4, 1992). Following retreat by the
Republican Caucus, Murkowski and Stevens never formally proposed their amendment.
82. See Holly Idelson, Senate Passes Energy Bill, 94-4; Arctic Refuge Issue
Dropped, 50 CONG. Q. WKLY. REP. 397, 398 (1992).
83. 138 CONG. REc. S1654 (daily ed. Feb. 19, 1992).
84. Id. at S1663.
85. See, e.g., Bryan amendment No. 1,644, to establish a voluntary program to
encourage industrial energy; Biden amendment No. 1,649, to establish an independent
Nuclear Safety Board, to investigate civilian nuclear safety issues; and Grassley amendment No. 1,650, to require the replacement of conventional fuels with alternative fuels.
Id. at D113.
86. 138 CONG. REC. S1696 (daily ed. Feb. 19, 1992).
87. Id.
88. See Idelson, supra note 82, at 397-98.
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209
many who voted for the bill, however, was tepid. For example,
Senator Gore, who had successfully proposed an amendment to the
bill to speed up phase-out of ozone-depleting chemicals, 89 called
the bill "a well-intentioned anachronism."9 0 Nonetheless, Gore voted
for the bill.91
B. The Birth of the House Bill
The birth of Representative Sharp's package (H.R. 776-80) in
the House would prove significant in the development of the legislation that ultimately became the EPAct. In the House, the Majority Leader holds tight reign over the agenda and determines the
issues to which individual members may react. 92 By contrast, in the
Senate the majority leadership must consult with the minority leadership. 93 Moreover, individual Senators can have a large impact
upon the agenda, a bill's content, and a bill's fate through exercise
of their veto power over unanimous consent, the lack of a general
germaneness requirement (which allows liberal amendment), and
the ability of a minority to kill a bill by filibuster.94 Such mechanisms
give individual Senators and small coalitions enormous claims to
power.
While the Senate fought on the floor over the high-profile,
controversial issues in S. 1220 that Johnston had rushed through
his committee, the House moved at a more deliberate pace through
numerous hearings and mark-ups on Representative Sharp's package (H.R. 776-80). This allowed committees to focus and deliberate in a participatory manner, holding open hearings over many key
issues. Johnston's decision to kill S. 1220 gave the House even
more time to work on its own proposals and reminded House
members to cooperate more effectively than had the Senate. By late
95
May, an alternative bill was on the House floor.
Sharp's package was referred to the House Energy and Commerce Committee for immediate consideration upon its introduc89.
90.
91.
92.
93.
94.
95.
See Idelson, supra note 72, at 298.
Idelson, supra note 82, at 397.
See id.
See TIEFER, supra note 35, at 206-11.
Id. at 463-64.
See id.
See infra part III.
HarvardEnvironmental Law Review
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[Vol. 19:195
tion in February 1991.96 Sharp's Energy and Power Subcommittee
moved quickly through hearings on the Public Utilities Holding
Company Act ("PUHCA"), 97 nuclear plant licensing, 98 the national
strategic energy reserve, 99 energy efficiency, 100 natural gas,' 0 ' petroleum rating, 102 pipeline regulation, 03 global warming, 0 4 coal research, 105 and electricity transmission. 10 6 In markup sessions, the
subcommittee also addressed the disposal of high-level nuclear
waste, 0 7 control of greenhouse gas emissions, 08 and the survival
of the U.S. uranium enrichment program. 0 9
The final bill approved by the subcommittee on October 31
(H.R. 776, which bundled the individual titles together) emphasized energy conservation and the development of non-petroleum
sources." 0 The issue which had raised the most controversy in the
subcommittee-and which would continue to raise controversy until the EPAct's final approval in October 1992-was a provision
that authorized DOE to begin dump studies for a proposed highlevel nuclear waste dump in Nevada, known as "Yucca Mountain,"
without obtaining state environmental permits for the work."' The
subcommittee did not address ANWR," 2 and, like the previous
3
version of H.R. 776, it was silent on CAFE standards."
Following the subcommittee's approval, Representative Dingell,
the powerful Chair of the Energy and Commerce Committee, put
96. 137 CONG. REc. H854 (daily ed. Feb. 4, 1991).
97. 137 CONG. REc. D513 (daily ed. May 1, 1991); 137 CONG. REc. D521 (daily
ed. May 2, 1991).
98. See 137 CONG. REc. D550 (daily ed. May 8, 1991).
99. 137 CONG. REC. D607 (daily ed. May 16, 1991); 137 CONG. REc. D667 (daily
ed. May 29, 1991).
100. See 137 CONG. REc. D667 (daily ed. May 29, 1991); 137 CONG. REc. D688
(daily ed. June 4, 1991).
101. 137 CONG. REc. D698 (daily ed. June 5, 1991).
102. 137 CONG. REc. D742 (daily ed. June 12, 1991).
103. 137 CONG. REC. D754 (daily ed. June 13, 1991).
104. 137 CONG. REC. D785 (daily ed. June 19, 1991).
105. 137 CONG. REc. D822 (daily ed. June 25, 1991).
106. 137 CONG. Rc. D834 (daily ed. June 26, 1991).
107. Holly Idelson, Panel Acts on Waste Dump, But Bill's Future Doubtful, 49
CONG. Q. WKLY. REP. 2613, 2613 (1991).
108. Id.
109. 137
110. See
3195 (1991).
111. See
112. See
113. Id.
CONG. REc. D1270 (daily ed. Oct. 17, 1991).
Andrew Taylor, The Panel's Light Touch, 49 CONG.
Idelson, supra note 107, at 2613.
Taylor, supra note 110, at 3195.
Q. WKLY.
REP. 3195,
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the bill on hold pending Senate action on its original bill (S. 1220). 114
Following S. 1220's defeat, Dingell continued to hold up the House
legislation while the Senate took up consideration of and quickly
approved S. 2166.115
C. House Bill Committee Markup
Aware that the Senate had just approved S. 2166, but unsatisfied with the Senate proposal's overall commitment to conservation, the House leadership requested that the various committees
with jurisdiction over H.R. 776 complete their consideration of the
bill by May 1, 1992.116 On March 11, Dingell's Energy and Com-
merce Committee gave overwhelming approval to H.R. 776.117 Following Energy and Commerce, the Committees on Science, Space,
and Technology, Interior and Insular Affairs, Merchant Marines
and Fisheries, and Ways and Means all approved substantial revisions or additions to the bill."' Among the provisions added to the
bill were restrictions on new offshore oil and gas leasing, and tax
incentives to encourage mass transportation and to aid independent
oil and gas producers.1 19 Setting the stage for an inter-committee
dispute with Energy and Commerce, the Interior and Insular Affairs
Committee, chaired by Representative Miller, 120 deleted a provision
121
in H.R. 776 which would restrict re-licensing of nuclear plants.
Four other committees-Foreign Affairs, Government Operations,
Judiciary, and Public Works-made relatively minor changes to
H.R. 776.122 Altogether, nine committees reviewed the legislation
prior to the leadership's May 1 deadline.
114. See Energy Bill Surges Toward Enactment, 1992 CONG.
Q. ALMANAC 231,
235.
115. See id. Dingell was "awaiting the Senate outcome before moving forward." Id.
116. See Holly Idelson, Action on Energy Bill, 50 CONG. Q. WKLY. REP. 1153, 1153
(1992).
117. See Holly Idelson, House Panel Nearly Unanimous in Approving Energy Bill,
50 CONG. Q. WKLY. RaP. 612, "612 (1992).
118. See Idelson, supra note 116, at 1153.
119. Id.
120. See Phil Kuntz, Interior to Feel Firmer Touch After Udall's Gentle Hand, 49
CONG. Q. WKLsy. REP. 1051, 1051 (1991) (discussing Miller's "hard charging but pragmatic" style).
121. See Holly Idelson, Environmentalists Get a Boost from Committees' Markups,
50 CONG. Q. WKLY. REP. 941, 941 (1992).
122. See Holly Idelson, Panels Race to Rework Comprehensive Bill, 50 CONG. Q.
WKLY. REP. 1152, 1152 (1992).
212
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II. THE HOUSE APPROVES ITS BILL
The House leadership had failed to establish detailed procedures for crafting a multicommittee bill before it met in 1991 to
plan its strategy on the energy bill. 123 The different versions approved by each of the nine House committees with jurisdiction24
over the Bill presented a "thicket of jurisdictional conflicts."'
First, committees that had equal jurisdiction had submitted competing versions of the same provisions. 125 Second, the same conflict
occurred when one committee had legislated a provision while
another committee had not, forcing leaders to choose whether to
include the provision at all. 126 A third type of disagreement involved committees apparently overstepping their jurisdiction by
amending portions of the bill not in their purview or adding nongermane provisions.127 For example, the Ways and Means Committee approved a "green" tax package designed to encourage conservation and renewable energy and to give tax breaks to independent
oil and gas producers. Approval of this amendment allowed
the
128
Senate Finance Committee to open a new round of review.
Hoping to settle inter-committee disputes before the week of
May 18, when the leadership intended to bring the bill to the floor,
House Speaker Thomas S. Foley held a meeting with the committee chairs on May 12, urging them to resolve as many issues as
possible. 29 Remaining issues, Foley warned, would be resolved by
the Rules Committee, scheduled to meet May 19.110 Committee
chairs thus faced strong incentives to compromise, particularly
123. See Holly Idelson, House Leaders Urged to Forge Comprehensive Floor Bill,
50 CONG. Q. WKLY. REP. 1244, 1244 (1992).
124. Id.
125. See id. For example, the Interior and Merchant Marine Committees approved
rival offshore drilling provisions. Id.
126. See Idelson, supra note 123, at 1244. For example, Interior approved highly
controversial provisions regarding the licensing of nuclear plants, while Energy and
Commerce opted not to address this issue. See id.
127. See id.
128. See id. See also infra part V.A.
129. See Holly Idelson, Bill Almost Ready to Go to Floor,50 CONG. Q. WKLY. REP.
1337, 1337 (1992).
130. Id. Tiefer describes the functions of the Rules Committee as follows:
The Rules Committee performs its historic function of screening bills before
granting the rule that admits them to the floor. More important, the Committee
structures the floor consideration by the type of special rule it grants, and by
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213
given the Rules Committee's awesome powers to deny a bill a
special rule until a joint version is negotiated--effectively precluding
floor consideration-and "to choose one committee bill or version
and to kill the others' bills by denying them special rules."13'
A. Inter-Committee Disputes and Complex Rules
Although some minor disputes had been settled by the time
the Rules Committee convened its deliberations, "sizable disputes
between rival committee chairmen as well as disputes over proposed amendments from individual members" remained. 32 All in
all, members and committee chairs had offered over 140 amendments, although some of these were hedges against the uncertainty
of the Rules Committee's final decision. 33 The committee heard
more than five hours of testimony on May 19.14
The full House was scheduled to take up consideration of
H.R. 776 on May 20.135 By that date, however, Rules had not
resolved all of the disputes raised by the various committee members
and chairs.1 36 In order to meet the leadership's schedule, it was necessary that the Rules Committee issue its special rule for H.R. 776
in two parts: the first (H.R. Res. 459), addressing the first seven
titles of the bill and nuclear plant licensing, was issued on May 19137
and adopted by voice vote on May 20;138 the second (H.R. Res. 464),
allowing the House to complete consideration of the final titles,
was issued May 20139 and adopted by voice vote on May 21,140 after
the House had debated the resolution for a full day.
the particular provisions it writes into the special rule. Finally, the Committee
settles jurisdiction disputes ....
TI'EFER, supra note 35, at 263.
131. See id. at 274-75.
132. Holly Idelson, Nuclear Industry Wins Points in House Policy Rewrite, 50
CONG. Q. WKLY.R P. 1436, 1436 (1992).
133. See id.
134. See id.
135. See id.
136. See id.
137. See 138 CONG. REc. D595-96 (daily ed. May 19, 1992).
138. 138 CONG. REc. H3465 (daily ed. May 20, 1992).
139. See id. at D609.
140. Id. at H3708 (daily ed. May 21, 1992).
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The special rules accompanying H.R. 776 were paradigmatic
"complex" rules-rules that set up some detailed arrangement for
debate, without being completely open or completely closed (i.e.,
allowing no amendments). Such rules had been integral to structuring consideration of the last major energy bill before Congress,
Carter's energy program in 1977.141 During consideration of that
legislation, Representative Thomas P. ".Tip" O'Neill, Speaker of the
House, suggested modifications which fell under the jurisdiction of
several different committees, and organized an ad hoc Energy Task
Force to coordinate the various versions of the bill. 4 2 The Rules
Committee, through its Chair, then provided a special complex
rule:
[Representative] Bolling [Chair of the Rules Committee] announced, "... this is a very complicated rule on a very com-
plicated subject which came to the Committee on Rules in a
very complicated way." The rule limited the amendments to be
offered to those specified in the bill, including 20 to be offered
en bloc by the Ad Hoc Committee and approximately 12 others
to be offered by individual House members .... Because of
the tight design of the rule, opponents of the energy package
were prevented from loading it down or delaying it with lastminute amendments. But they were given the opportunity to
vote on controversial provisions, to substitute the language of
the Republican program,
and to recommit the bill with or
43
without instructions.1
Complex rules can affect the outcome of legislation, according to
Charles Tiefer, Deputy General Counsel for the U.S. House of
Representatives: "Compared to the more limited proposals of the
94th Congress, which tied up the House floor for weeks and resulted in passage of several heavily amended pieces of legislation
...the
House was able to complete action on the 1977 legislation
in five legislative days.'" 144
The complex rules which accompanied H.R. 776 to the floor
ensured it a success similar to the 1977 legislation. Debate was
141. See TFER, supra note 35, at 271.
142. See id.
143. TEFER, supra note 35, at 271-72, (citing Bruce I. Oppenheimer, Policy
Implications of Rules Committee Reforms, in LEGISLATIVE R.FORM 91, 101 (Leroy N.
Rieselbach ed., 1978)).
144. Id. at 272 n.45, (citing Oppenheimer, supra note 143).
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limited to five hours, with one hour equally divided between the
Chair and the Ranking Minority Member of the Energy and Commerce Committee and the remaining time allocated in thirty-minute
145
blocks to each of the other eight committees with jurisdiction.
The rules (1) ordered amendment in the form of a substitute bill
consisting of the text print proposed by the Rules Committee as an
original bill (for purposes of amendment) and (2) waived all points
of order against the substitute bill. 146 The rules only allowed amendments printed in the Rules Committee's reports, in the order specified, 147 and permitted Dingell, the Chair of Energy and Commerce,
to offer amendments en bloc consisting of the text of amendments
in the reports accompanying the rules, even though 48
en bloc amend1
ments are not amenable to a demand for division.
In proposing its own print of H.R. 776 and in issuing reports
together with rules that limited amendments, the Rules Committee
resolved many key issues. This committee was effectively able to
add amendments to the Energy and Commerce Committee bill
without floor votes. For example, the Rules Committee decided to
include bans on offshore oil and gas drilling in certain areas added
by the Interior and Merchant Marine Committees and then sealed
the bans in place by refusing to allow a separate vote to strike or
limit the bans. 49 The Rules Committee also approved-and refused
to allow amendments to-the package of tax incentives proposed
by Ways and Means. 50 The sweeping overhaul of the electric utility
industry written by Energy and Commerce-far more radical in its
changes than S. 2166, especially with respect to transmission access-was protected from amendment through the use of complex
151
rules.
145. See H.R. Res. 459, 102d Cong., 2d Sess. (1992); 138 CONG. REc. H3462 (daily
ed. May 20, 1992).
146. See H.R. Res. 459, 102d Cong., 2d Sess. (1992); 138 CONG. REc. H3462 (daily
ed. May 20, 1992).
147. See 138 CONG. REC. D609 (daily ed. May 20, 1992).
148. See id.
149. See Idelson, supra note 132, at 1436.
150. See id. at 1437.
151. See id. at 1436.
216
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B. Miller Wins a JurisdictionalBattle Against Dingell but Loses
the War Over Substance
Perhaps the most controversial issues addressed by the Rules
Committee, however, arose from a showdown between Dingell,
Chair of the Energy and Commerce Committee, and Miller, Chair
of the Interior and Insular Affairs Committee. Miller had drafted
extensive proposals on nuclear licensing and radioactive waste that
were viewed as an assault on the nuclear power industry, which
had sought to streamline the licensing process.1 52 Dingell responded
to these provisions by claiming that Interior had overstepped its
jurisdiction. 153 But, despite his power, Dingell lost this territorial
battle. The bill sent to the floor by the Rules Committee contained
the Interior Committee's provisions on licensing and reflected Interior's vote to excise a controversial provision which gave the
federal government extra powers to study whether to build a nuclear waste dump at Yucca Mountain, although these54 provisions
would be open to amendment before the full Senate.
Even though the Rules Committee was able to substantially
influence the content of the bill before the House, in many instances it did not have the last word on the bill's final substance.
Representative Bob Clement of Tennessee offered an amendment
which streamlined nuclear re-licensing procedures in a manner
similar to Dingell's Energy and Commerce proposal. It passed 254
to 160.155 Dingell offered an amendment exempting site characterization activities at Yucca Mountain from state or local permitting requirements, which passed by voice vote over the strenuous
objections of the Nevada delegation. 56 Despite Miller's jurisdictional victory in the battle over nuclear power plant licensing and
Yucca Mountain, Dingell won the war over the bill's substance.
152. See Holly Idelson, Miller vs. Dingell, 50 CONG. REc. 1438, 1438 (1992).
153. See id.
154. See id.
155. 138 CONG. REc. H3653 (daily ed. May 20, 1992).
156. See 138 CONG. REc. H3716 (daily ed. May 21, 1992). Curiously, though,
Dingell did not attempt to reinsert a related proposal he had placed in the bill during
Energy and Commerce's markup. This related proposal would have singled out Nevada as
the host state for a temporary radioactive dump site as well as the favorite for the
permanent repository. See Idelson, supra note 132, at 1438.
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217
C. House Approval
Other amendments approved before the full House included
restrictions on state regulators' powers over gas production, 157 national
efficiency standards for plumbing equipment, 15 8 and Dingell's en
bloc amendments. 59 On the final day of floor debate, the House
resolved a key difference with the Senate by agreeing 263 to 135
to remove a proposal that would have forced oil importers and
refiners to help fill the Strategic Petroleum Reserve, the nation's
oil stockpile. 60 The House rejected by a 198-211 vote an amendment
proposed by Representatives Jim Jontz of Indiana and Thomas
Ewing of Illinois to boost ethanol fuel use by 2006.161
Although Miller had lost to Dingell on the nuclear power plant
re-licensing provisions and on Yucca Mountain, a last showdown
over hydroelectric licensing remained. Miller and his supporters
believed that the Federal Energy Regulatory Commission, which
oversees hydroelectric licensing, could not be trusted to take into
account local environmental concerns. 62 The Interior proposal,
reflected in a floor amendment offered by Miller, restricted hydroelectric development and licensing.1 63 Dingell attempted to block
Miller's amendment by proposing in a substitute amendment a
compromise which placed some new restrictions on hydroelectric
projects, but fewer than Miller had proposed. 6 4 The House voted
first on Dingell's substitute which was defeated by a vote of 195221;165 Miller's amendment passed 318-98, despite fierce administration opposition1 66 Miller also forced a compromise amendment,
offered en bloc by Dingell, which strengthened environmental protections on coal development, but had fewer environmental safe167
guards than the original Interior proposal.
157. 138 CONG. REC. H3660 (daily ed. May 20, 1992).
158. Id. at H3602.
159. 138 CONG. Rc. H3718 (daily ed. May 21, 1992); 138 CONG. REc. H3773
(daily ed. May 27, 1992).
160. See 138 CONG. REc. H3757 (daily ed. May 27, 1992).
161. See 138 CONG. Rac. H3626 (daily ed. May 20, 1992).
162. See Holly Idelson, House Gives Energy Bill Big Win; Lengthy Conference
Expected, 50 CONG. Q. WKLY. REP. 1530, 1532 (1992).
163. See id.
164. See id.
165. 138 CONG. REc. H3800 (daily ed. May 27, 1992).
166. Id.
167. See 138 CONG. REc. H3769 (daily ed. May 27, 1992).
218
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The bill passed the House by an overwhelming 381-37 vote
on May 27.168 The lack of enthusiasm for H.R. 776 was eerily
similar to the Senate's lukewarm praise for S. 2166 following its
passage. Very few were thrilled with the final bill, which fell well
short of environmentalist and energy producer wish lists, yet "virtually all factions found something to like in the bill. 1 69 Although
the bill contained several provisions the administration had opposed, 70 President Bush by then was increasingly desperate for a
legislative accomplishment on energy issues. DOE Secretary Watkins praised the bill as a step towards the "most comprehensive
and balanced energy legislation ...
seen in twenty years"' 71
IV. FOLLOWING CERTAIN AMENDMENTS, THE SENATE APPROVES
THE HOUSE BILL
After the House approved H.R. 776, it was predicted that the
Senate would "take up the House energy bill, insert the provisions
of its own energy legislation and send it back to the House to begin
the conference process."' 72 House passage of a bill parallel to a
previously passed Senate bill, however, did not automatically clear
the way for conference. Senator Bentsen, Chair of the Finance
Committee, demanded an opportunity to mark up the House bill,
which contained several tax provisions the Senate had not approved
in S.2166.173 Amendments offered in Bentsen's committee, filibuster
threats, and controversial non-germane amendments would threaten
the bill until it finally passed through the Senate and became law
in July.
168. Id. at H3811-12.
169. Holly Idelson, House Gives Energy Bill Big Win; Lengthy Conference Expected, 50 CONG. Q. WKLY. REP. 1530, 1530 (1992).
170. Id. ("[Tihe Bush administration still has qualms about several [of H.R. 776's]
accomplishments .... ).
171. Idelson, supra note 169.
172. Id. at 1532.
173. See Holly Idelson, Nevada Senators Vow to Block Energy Bill Unless Appeased, 50 CONG. Q. WKLY. REP. 1698, 1698 (1992).
1995]
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National Energy Policy Act
A. Finance Markup
Even before H.R. 776 got to the Finance Committee, Senators
from Nevada triggered the first hold-up of the House Bill in the
Senate. Senators Reid and Bryan were upset with a provision in
the House bill that would allow the federal government to bypass
state permitting laws in studying whether to build a nuclear waste
dump at Yucca Mountain. 7 4 Senator Bentsen had initially scheduled the bill's markup in Finance for June 11, but Reid threatened
to invoke a Senate Rule that requires unanimous consent for committees to meet more than two hours after the Senate had been in
session. 75 In order to avoid any significant delay Reid's threat
might have brought on, Bentsen postponed the Finance markup
until June 16, which allowed Yucca Mountain and other looming
76
controversies to build.1
Finance's markup was a step toward conference,
77
but a step
back as well. Finance moved H.R. 776 forward by approving many
tax measures that did not depart significantly from House proposals.
For example, Finance proposed permanent relief for independent
oil and gas drillers, similar to temporary provisions in the House
bill; 17 these provisions easily survived an amendment to strike
offered by Senator Bradley, 179 which was rejected six to fourteen
in committee.18 0 Senator Daschle won the committee's support for
an amendment that broadened existing tax breaks for ethanol-based
fuels. 8 ' Finance also approved by voice vote tax breaks for buyers
of cars that run on clean-burning fuels, including both natural gas
and electricity, broadening a provision in the House bill that favored natural gas over other dternative fuels.' 8 2 Senator Breaux
won Finance's support for an amendment that would give regulated
174. Id. Although this language was not in the Senate bill, Johnston had argued for
it in a separate bill (S. 1138), which the Energy and Natural Resources Committee had
approved. Id.
175. See Idelson, supra note 173, at 1698.
176. See id.
177. See infra note 234.
178. See Holly Idelson, Senate Committee Goes Along with House Tax Changes, 50
CONG.
Q. WKLY. REP. 1790, 1790 (1992).
179. See id. at 1791.
180. Id.
181. See id.182. See Idelson, supra note 178, at 1791.
220
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integrated natural gas companies some of the same advantages
available to independent producers.1 83
While these amendments broadened House provisions, they
did not depart significantly from the overall spirit of the House
bill, for which there appeared to be wide-spread support in the
Senate. 8 4 But Finance threatened the bill's future by approving a
highly controversial coal tax proposed by Senator Rockefeller to
help pay for health benefits for retired miners. 85 This highly partisan coal tax was opposed strongly by President Bush, who had
vetoed an identical proposal added by Rockefeller to a previous
tax bill; the tax also lacked a single Republican supporter on the
Senate Finance Committee. 186
B. Steering Clear of Filibuster
Senator Wallop, who had helped to draft the bill, was so strongly
opposed to the coal tax proposal that he threatened to filibuster the
bill if the tax remained. 8 7 This development, coupled with the Nevada
delegation's concern over Yucca Mountain, raised fears that the bill
would sink as it neared a cloture vote on the motion to proceed
scheduled by Senate Majority Leader Mitchell for July 22.188
Such fears led to "a week of furious and sometimes bizarre
legislative maneuvering."'' 8 9 In an audacious move, designed to bypass Finance's proposals, including the Rockefeller coal tax provision, Johnston, who also chaired the Energy-Water Appropriations
Subcommittee, attached the text of H.R. 776 and S.2166, excepting the tax provisions adopted by Finance, to an energy and water
spending bill during markup on July 21.190 Johnston's tactic, although not unprecedented,' 9' was derailed by Senator Byrd, Chair
183.
184.
185.
186.
187.
REP. 2043,
188.
189.
See id.
See id.
See id. at 1790.
See id.
See Senate Energy Bill Backers to Try Again in Late July, 50 CONG. Q.WKLY.
2043 (1992).
See id.
Holly Idelson, Bill to Set National Policy Remains Blocked Over Coal Tax
Provision, 50 CONG. Q. WKLY. REP. 2166, 2166 (1992).
190. See id. at 2167-68.
191. See id. at 2167. Johnston reminded the committee that the 1987 legislation that
1995]
National Energy Policy Act
of the full Appropriations Committee. Byrd, who is from West
Virginia and was a strong supporter of Rockefeller's coal tax provision, canceled a full Appropriations Committee markup scheduled for July 22 and agreed to consider the spending bill only on
192
the condition that the energy policy provisions were abandoned.
While Johnston's earlier invocation of Rule XIV had successfully
avoided S. 2166's markup in committee, his resort to this mechanism-attaching the energy bill as a non-germane amendment to
93
an appropriations bill-quickly failed.1
Pursuant to a unanimous consent agreement presented by Mitchell,
a cloture vote on the motion to proceed to H.R. 776 was scheduled
for July 23.194 The Nevada delegation, through Bryan, was threatening to filibuster the motion to proceed 95 or, should consideration
of the bill move forward, to weigh it down by offering more than
100 amendments.1 96 But Johnston appeased the Nevada delegation
by going to the Senate floor and publicly assuring them that he
would work to keep the controversial Yucca Mountain provisions
197
out of the bill that emerged from conference.
Rockefeller's coal tax provision, adamantly opposed by the
Republican leadership, remained the only obstacle to taking up
consideration of the energy bill. But it would have been politically costly for Wallop, a primary author of the Senate bill, or the
administration, touting the energy bill in an election year, to
block consideration of the House bill on even this issue. Thus
Wallop and the administration entered into negotiations with Rockefeller over the coal tax. On July 23, immediately preceding the
had singled out Nevada for the high-level nuclear waste dump studies was at one point
sent to the House on Johnston's appropriations bill. See id.
192. See id.
193. See id. The Rule XIV approach has some distinct advantages over offering a
bill as a non-germane amendment. One argument is that it is more "legitimate," because
it is "clearly provided for in the rules:' TIEFER, supra note 35, at 596 (citing LEwIs
FROMAN, THE CONGRESSIONAL PROCESS: STRATEGIES, RULES, AND PROCEDURES 137
(1967)).
194. See 138 CONG. REC. S10,099 (daily ed. July 22, 1992).
195. See Holly Idelson, Bill to Set NationalPolicy Remains Blocked Over Coal-Tax
Provision, 50 CONG. Q. WKLY. REP. 2166, 2167 (1992).
196. See id.
197. See Holly Idelson, supra note 189, at 2166-67. Although reported in the press,
such an assurance by Johnston does not appear in the Congressional Record.
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cloture vote, talks appeared very close, 198 but not close enough. The
motion to limit cloture failed 58-33, two votes short. 99
When the cloture vote failed, the administration attempted to
pin the blame for derailing the energy bill on Rockefeller and the
Democratic party.200 The vote was an ironic turn-around from the
vote which had killed S. 1220, filibustered primarily by environmentalists in the Democratic party. This time the anti-tax and
pro-business interests in the Republican party, not green Democrats, stood in the way of consideration of an energy bill. Rockefeller defended his fight to secure miner benefits: "I will not yield.
I will not yield" he said. "The only power I have on this as a
20 1
single senator is-I will not yield."
Aware of the political irony of filibustering the House bill, the
Republicans continued to negotiate with Rockefeller over the coal
tax provisions.2 0 2 A cloture vote on the motion to proceed was
rescheduled for July 28.203 Confident that a deal had been set, the
Senate invoked cloture ninety-three to four and full debate on the
20 4
bill began.
But following the cloture vote the deal on the Rockefeller coal
tax provision began to unravel. The Senate sealed the deal in place
by approving by voice vote an amendment offered by Rockefeller
on July 29.205 Rockefeller had led the Senate to the edge of disaster
but had secured benefits for the retired miners. The anonymity of
voice vote may have allowed Rockefeller to keep the administration from influencing individual Republican Senators. If the administration's supporters had requested roll-call on the amendments
and held defectors accountable, perhaps Rockefeller's amendment
and the bipartisan deal would not have survived.
See id.
138 CONG. REc. S10,210 (daily ed. July 23, 1992).
See Idelson, supra note 189, at 2167.
Id.
See Holly Idelson, Bills to Cut Oil Dependence Finally Head to Conference,
50 CONG. Q. WKLY.REp. 2261, 2262 (1992).
203. 138 CONG. REC. S10,358 (daily ed. July 27, 1992).
204. See id. at S10,436-37 (daily ed. July 28, 1992).
205. See id. at S10,787 (daily ed. July 29, 1992).
198.
199.
200.
201.
202.
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C. Disposing of Non-Germane Amendments
House rules require amendments to be "germane," i.e., to pertain to the matter under consideration. 2 6 By contrast, the Senate's
rules do not generally require germaneness.20 7 However, once cloture on a bill has been invoked or a bill is being considered under
time limitations, the Senate leadership may impose a germaneness
208
limitation.
During floor consideration of H.R. 776 in the Senate, however,
individual members offered many amendments which, at best, were
only tangentially related to energy policy. At one point, Senator
Wallop pleaded for his colleagues to stop "dabbling in the occult. ' 20 9 Although the Senate's rule against non-germane amendments would have been applicable had cloture been invoked on the
substantive bill, cloture on a motion to proceed, absent additional
unanimous consent limitations on amendments, is not sufficient to
invoke a non-germaneness requirement in the Senate. 210 Even without a non-germaneness rule, however, the leadership proceeded to
dispose of controversial, often non-germane, amendments with the
actual or threatened use of procedural devices, such as the motion
21
to table and the point of order.
One of the few amendments actually addressing energy policy
was introduced by Senator Bradley. His proposal would have removed those Senate Finance Committee provisions which proposed
tax relief for independent oil and gas drillers and substituted a
provision similar to those in the bill passed by the House.212 Growing opposition from oil- and gas-producing states, however, led the
Senate to kill Bradley's amendment by a 63-32 vote on a motion
to table from Bentsen.21 3 Other amendments addressing energy policy
were more successful, such as an amendment by Senator Pressler
206. TIEFER, supra note 35, at 420-22.
207. Id. at 464.
208. See id. at 726. The non-germaneness rule on cloture is strictly kept. See id.
209. 138 CONG. REc. S10,787 (daily ed. July 29, 1992).
210. See TIEFER, supra note 35, at 728 (discussing germaneness of amendments
once cloture has been invoked).
211. See infra notes 212-232 and accompanying text. Motions to table take precedence over most other matters under Senate rules and are decided without debate. They
thus provide a fast, non-controversial way for Senate leaders to dispose of threatening
amendments. See TIEFER, supra note 35, at 664.
212. See Idelson, supra note 202, at 2262.
213. See 138 CONG. REc. S10,760 (daily ed. July 29, 1992).
224
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to improve federal pipeline safety inspections, 2 4 an amendment by
Johnston to provide for a survey of rural electric cooperative least
cost planning, 2 5 another Johnston amendment to extend authorization of the Uranium Mill Tailings Radiation Control Act,21 6 and an
amendment by Wallop for equitable tax credit treatment regarding
payments into the Trans-Alaska Pipeline Liability Fund.217 The Alaska
delegation was able to obtain an amendment requiring the Secretary of Energy to study the impacts of ANWR development on the
218
industry, the economy, and national security.
A large number of amendments, however, strayed far from
issues of energy policy. Because no non-germaneness requirement
was in effect, no point of order against the non-germane amendments could be raised.
The most notable departure from energy policy was an amendment
proposed during floor debate by Senator Specter to attach his health
care proposal.2 19 The amendment, had it survived, would have sent
the bill on a substantial detour by opening up debate on the merits
of various health care proposals. Hoping to narrow consideration
of Specter's amendment, Senator Bentsen began the debate on it by
20
successfully proposing that no amendments to it be allowed. 1
Through an astute application of Senate budget procedure,
Bentsen then proceeded to kill the amendment. Specter's proposed
amendment, Bentsen noted, would have reduced federal revenues
in excess of four billion dollars over five years.22 1 This would have
caused the current level of revenues to fall below the revenue floor
of the most recent Budget Resolution. 2 2 Bentsen therefore raised
a point of order objecting that Specter's amendment violated the
Congressional Budget Act, which may be waived only upon the
vote of sixty Senators. 22 3 Specter then moved to waive the Budget
214. Id. at S10,778-80.
215. Id. at S10,787-88.
216. Id. at S10,781-82.
217. 138 CoNG. REc. S10,862 (daily ed. July 30, 1992).
218. Id. at S10,796-97 (daily ed. July 29, 1992).
219. See Idelson, supra note 202, at 2263.
220. See 138 CONG. REC. S10,761 (daily ed. July 29, 1992).
221. Id. at S10,766.
222. Congressional Budget Act of 1974 § 3 11(a), 42 U.S.C. § 642(a) (1988 & Supp.
V 1993) (prohibiting consideration of bills and amendments that would cause revenues to
drop after a budget has already been set); See 138 CONG. Rc. S10,766 (daily ed. July
29, 1992).
223. See 138 CONG. REC. S10,766-68 (daily ed. July 29, 1992).
1995]
National Energy Policy Act
Act, and the presiding officer ruled that this motion pre-empted
Bentsen's point of order.2 24 Specter's motion to waive the Budget
Act then lost by a vote of 35-60, and the presiding officer sustained
225
Bentsen's point of order.
Other amendments departing from the bill's subject matter
followed. Senator Dodd proposed an amendment addressing the
structure of financial partnerships, 226 which he eventually withdrew.2 27 An amendment proposed by Senators Graham and Symms
would have let states issue tax-exempt bonds for high-speed rail
projects regardless of state by state limitations on the amount of
such bonds. 228 Following a failed motion to table the Graham/Symms
amendment by Johnston, 229 the amendment was approved by voice
vote. 230 Murkowski successfully proposed an amendment for a jobs
survey reporting on significant construction, development and manufacturing projects, 2 1 and Senators D'Amato and Moynihan sponsored a successful amendment to prevent circumvention of anti2 32
dumping and countervailing duty orders.
H.R. 776 was approved by the Senate ninety-three to three on
July 30, with provisions inserted from the Senate bill, the approved
2 33
Finance Committee proposals, and approved floor amendments.
The Senate then sent the revised package back to the House.
V.
CONFERENCE AND FINAL PASSAGE
The House, by unanimous consent, disagreed with the Senate
amendments and sent the House and Senate versions of H.R. 776
to conference.23 4 Immediately upon passage in the Senate, Johnston,
224. See 138 CONG. REc. S 10,768-69 (daily eds. July 29, 1992 and July 30, 1992).
225. See 138 CONG. RFc. S10,769 (daily ed. July 30, 1992).
226. See id. at S10,790-91.
227. Id. at S10,869.
228. Idelson, supra note 202, at 2263.
229. See 138 CONG. REc. S10,778 (daily ed. July 29, 1992).
230. Id. at S10,781.
231. See id. at S10,792-93.
232. See 138 CONG. REc. S10,864-67 (daily ed. July 30, 1992).
233. See id. at S10,876.
234. 138 CONG. REc. H8104 (daily ed. Aug. 12, 1992). Conference is the primary
method of reconciling the differences between the chambers. Conference committees are
composed of members of both houses, who smooth out legislation which, though approved
in both the House and the Senate, was approved in different forms. See TIEFER, supra note
35, at 767-68.
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anticipating House disagreement, had named thirty-one Senate conferees for the bill, 235 even though negotiations were not expected
to commence until after the August recess. 236 On August 12, House
Speaker Foley removed the final roadblock to conference by appointing 100 House negotiators. 237 Overall, nearly one-fourth
of
23
Congress participated in the conference negotiations.
A. Conference
Dingell had secured a central role going into conference: his
Energy and Commerce Committee had conferees on all parts of the
energy bill but the tax provisions, even though many issues were
considered to be outside of the jurisdiction of the Energy and
Commerce Committee. 239 Going into conference, the administration
generally favored the Senate version of the bill, but DOE Secretary
Watkins sent the Conference Committee a seventeen-page list of
concerns, several of which it was anticipated could provoke veto
of the final bill.240 Conference would become a mechanism for
further whittling down the bill to achieve consensus, as many
controversial issues were dropped.
The Conference Committee, chaired by Johnston, held its first
meeting on September 10.241 The size of the committee forced
legislators to stay focused on the important issues, encouraged
them to deliberate carefully and efficiently, and allowed them to
better resist isolated opposition. 242 Johnston presented a "breakneck" schedule, which called for completion of the conference
report by the week of September 21 and bringing the final bill to
243
the House and Senate floors by the last week in September.
235. 138 CONG. REc. S10,876 (daily ed. July 30, 1992).
236. See Idelson, supra note 202, at 2261.
237. See Energy Conferees, 50 CONG. Q. WKLY. REP. 2448, 2448 (1992).
238. The opening conference session was so large it had to be held in the Cannon
caucus room, "one of the few Hill locales large enough to accomodate all of the lawmakers
.... Energy Bill Surges Toward Enactment, supra note 114, at 246.
239. See id.
240. See Holly Idelson, Conference Tackles Huge Bill, But Thorniest Issues Remain,
50 CONG. Q. WKCLY. REP. 2710, 2710 (1992).
241. Id.
242. Cf David W. Orr, U.S. Energy Policy and the PoliticalEconomy of Participation, 41 JOURNAL OF POLITICS 1027, 1052-55 (1979) (explaining the analogous effects on
policy formation from large-scale citizen participation).
243. See id.
1995]
National Energy Policy Act
At the first Conference Committee meeting, conferees tentatively approved a package to promote energy efficiency and electric
vehicles. 244 While this package comprised a significant portion of
the two bills and was very important from the perspective of environmental interests, these issues were "also among the easiest to
resolve because both chambers had adopted similar language on
most provisions 245 Hoping to solve a major point of disagreement
between the House and Senate versions, Johnston made an opening
concession by proposing provisions which would guarantee wholesale
transmission access for electric generators.2 46 Although Johnston's
concession was considered an improvement on the Senate bill,
which previously had contained no transmission access provisions,
it was criticized by many of the House conferees as too weak. 247
The conferees deferred action on this and many other controversial
24
issues of disagreement.
Nor did the conferee's next meeting, on September16, resolve
most issues of disagreement. Following the second meeting, negotiations "were more noteworthy for what they left unresolved than
for what they settled.' 249 Second-round agreements included a compromise version of the respective provisions promoting energyefficient buildings.25 0 Senate negotiators agreed to House proposals
to set energy efficiency standards and simplify the federal ratemaking process for interstate oil-pipelines, 25 1 while House negotiators
agreed to a Senate proposal which promoted energy efficiency standards for manufactured housing.252 Negotiators agreed to a compromise package of coal research and development programs. 253 Conferees, however, did not resolve the transmission access disagreement,
nor did they resolve other key disputes concerning alternative fuel
fleets, natural gas production, and uranium enrichment.25 4 At the
244. See id.
245.
246.
247.
248.
Idelson, supra note 240, at 2711.
See id.
See id.
See id.
249. Holly Idelson, Huge Conference Fails to Confront Policy Bill's Major
Conflicts, 50 CONG. Q. WKLY. REp. 2802, 2802 (1992).
250. See id.
251. Id. at 2803.
252. Id. at 2802.
253. Idelson, supra note 249, at 2802.
254. See id. at 2803.
HarvardEnvironmental Law Review
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end of round two, a discouraged Johnston warned that the odds
were no better than 50/50 that Congress could pass a bill in 1992.255
Throughout the next week conference talks continued, "yield[ing]
no dramatic breakthroughs," but moving "just far enough to keep
the bill (H.R. 776) afloat.'256 Election-year political pressures seemed
to propel negotiations: Democrats, who now had a candidate for
President, were well aware that President Bush could use a failed
bill against them in the November election. By the same token, the
administration did not want to stand in the way of passing legisla2 7
tion that it had originally pushed.
Finally, following an eleven-hour negotiation session, the conferees approved a Conference Report to accompany H.R. 776 on
October 1.258 Negotiators were only able to reach consensus by
abandoning disputed provisions regarding offshore oil and gas drilling and natural gas pipelines, leaving these issues for future Congresses.25 9 At the last minute, conferees dropped entirely the title
related to natural gas. 260 The House conferees were able to secure
strong transmission access provisions, but only by making concessions on Public Utilities Holding Company Act reform which allowed utilities to purchase power from independent affiliates (subject to state approval) and agreeing to new provisions that would
26
allow utility holding companies to build power plants overseas. '
Although Johnston had promised the Nevada delegation that he
would fight in conference to remove the language in H.R. 776
regarding pre-emption of Nevada's authority to issue environmental
permits for activities at Yucca Mountain, 262 he quietly struck a deal
with House negotiators Dingell, Sharp, and Miller to insert a pro263
vision that weakened the radiation disposal standards for the site.
Tax provisions in the House and Senate bills, however, remained entangled in complex Conference Committee negotiations.
The tax Conference Committee approved a package on October 4
255. See id.
256. Holly Idelson, Rifts Remain on NationalPolicy as Huge Conference Races On,
50 CONG. Q. WKLx. REP. 2927, 2927 (1992).
257. See id.
258. Holly Idelson, Conferees at Last Find Harmony on National Energy Strategy,
50 CONG. Q. WKLY. REP. 3030, 3032-33 (1992).
259.
260.
261.
262.
See id.
Id. at 3033.
See id.
See supra note 197 and accompanying text.
263. See Idelson, supra note 258, at 3033.
19951
National Energy Policy Act
which included "green" tax incentives for mass transit, conservation, renewable energy, and non-gasoline automobiles and tax relief
for independent oil and gas drillers.264 Rockefeller's proposed coal
tax was approved even though many conferees had attempted to
2 65
use the new tax to withhold the bill from floor consideration.
B. Final Passage
By October 5, the Conference Report was finally cleared for
floor consideration. Conference Committee reports are rarely rejected
by Congress. 26 6 They must be adopted or rejected as a whole. 267 In
this instance, the imminent end of the legislative session, coupled
with election year pressure to produce a bill, made passage of the
Conference Report accompanying H.R. 776 especially likely.
However, the bill's last journey through the House and Senate,
though ultimately victorious, would hardly be a rubber-stamp formality. Floor consideration prior to final passage revisited provisions
concerning Yucca Mountain; these provisions were so controversial
that the bill was almost sidetracked by a variety of procedural
devices. The large size of the Conference Committee, which caused
many members of Congress to have a stake in the bill's passage,
and the general tendency for technical maneuvers to fail unless
they supported the status quo, made such procedural devices futile.
The House adopted, by a vote of 380-36, H.R. Res. 601, which
waived all points of order against the Conference Report and its
consideration and provided for two hours of debate. 268 H.R. Res. 601
survived despite the urging of Representative Vucanovich of Nevada that members vote "no" on the rule. 269 Vucanovich opposed
the rule because it would preclude her from raising a point of order
against Section 801, which contained Johnston's conference compromise on Yucca Mountain, as exceeding the scope of the Conference. 27 0
264. See Holly Idelson, Bill's Taxes Are a Blessing to Some... and a 'Mugging'
to Others, 50 CONG.
Q.
WKLY. REP. 3144, 3145 (1992).
265. See id. at 3144.
266. TInEFER, supra note 35, at 817.
267. See id.at 818.
268. 138 CONG. REc. H11,374-85 (daily ed. Oct. 5, 1992).
269. See id. at H11,385.
270. See id. "Conferees cannot remove language both chambers agree on, or insert
230
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Debate was relatively uneventful. It consisted primarily of
staged colloquies and praise for the bill's achievements, although
some members did rise in opposition. 271 Despite Vucanovich's loss
on the rule bringing the bill to the floor, she had one remaining
opportunity to amend the Conference Report: recommittal. Recommittal with instruction, although not binding on the Conference
Committee, would have sent a strong message urging deletion of
the Yucca Mountain provision.27 2 Vucanovich made a motion to
recommit the Conference Report to the committee with instructions, but her motion was rejected by a 323-102 vote.273 Immediately following this vote, the House approved the Conference Report by a vote of 363-60.274
The Senate agreed to consider the Conference Report on October 5.275 Anticipating a filibuster over Yucca Mountain, Majority
Leader Mitchell immediately made a cloture motion without objection.
276
When the Senate began debate on the cloture motion on October 8, Senator Reid of Nevada launched a final campaign against
the energy bill. The Nevada delegation was livid about the Yucca
277
Mountain provision agreed to in the Conference Committee. If
the House had not already acted on the Conference Report, the
Nevada senators could have moved to recommit the report as "beyond the scope of the conference" with instructions, or raised a
point of order to recommit; because the Senate was acting last,
however, the Nevada Senators could not move to recommit the
new provisions not in either chamber's version." TIEFER, supra note 35, at 812-13. Tiefer
notes that, while in theory Congress limits the conferees' scope of authority to the "scope
of the differences" between the House and Senate versions, in practice conferees have a
vast amount of discretion. Id. at 811-12. Vucanovich, also a conferee, had lost a vote
among House conferees to delete the provision. See Idelson, supra note 258, at 3033.
271. See 138 CONG. Rc. H11,419 (daily ed. Oct. 5, 1992) (Vucanovich); id. at
Hi1,420 (Representative DeFazio of Oregon, opposing bill on ground that it had "no
unifying purpose"); id. at H 1,421-22 (Representative Bilbray of Nevada, opposing the
Yucca Mountain provision); id. at Hil,498 (Representative Lewis of Florida, opposing
deletion of coastal oil drilling provisions).
272. See TEFER, supra note 35, at 819.
273. 138 CONG. REC. H11,449 (daily ed. Oct. 5, 1992).
274. Id. at H11,449-50.
275. Id. at S16,688-89.
276. See id. at S16,689.
277. See Idelson, supra note 258, at 3033.
1995]
National Energy Policy Act
Report. 278 Instead, they attempted to filibuster the bill.2 79 Senator
Reid stated:
Neither the House nor the Senate bills contained language
requiring new Nuclear Waste Policy Act regulations. I want to
be very clear on this point. Requiring the Nuclear Regulatory
Commission to promulgate new regulations on high-level radioactive waste was never part of either bill. Why then280have the
energy conferees chosen to go beyond their charge?
Senator Bryan added:
What was done to Nevada at the last minute, without the benefit
of a hearing, no opportunity to be heard or expert testimony
received, is to change this standard so that if a nuclear waste
dump is ever located at Yucca Mountain, only those of us in
Nevada will have a lower standard of health281and protection from
radiation than anyone else in the country.
The individual power of the Nevada Senators to threaten filibuster,
however, was no match for Johnston's momentum coming out of
the Conference Committee. Despite spirited attempts to kill the
bill, cloture was invoked by an 84-8 vote and the Senate approved
the Conference Report. 2 2 The bill had passed both chambers of
Congress, and the President signed the EPAct on October 24,
1992.283
VI. LEssoNs
Although the EPAct passed, and .energy issues are not now at
the top of the national agenda, Congressional procedure had a
significant impact on the substance of the bill and thus on current
energy policy.
The EPAct failed to deal with many important long-term energy issues, among them ANWR drilling and CAFE standards. Its
278. See TIEFER, supra note 35, at 832-33.
279. Idelson, supra note 258, at 3033.
280. 138 CONG. REC. S17,556 (daily ed. Oct. 8, 1992).
281. Id. at S17,560.
282. Id. at S17,625.
283. President's Statement on Signing the Energy Policy Act of 1992, 1992-1993
PUB. PAPERS 1962 (Oct. 24, 1992).
232
HarvardEnvironmental Law Review
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emphasis on short-term conservation over supporting domestic production will at best cap rather than significantly reduce U.S. dependence on foreign oil. Even Bennett Johnston, the EPAct's chief
architect in the Senate, recognized its limits; upon its passage, he
remarked that "great policy shifts come slowly. '284 Energy issues
are likely to re-emerge before the- end of this century or in the early
285
years of the next.
We would be wise to learn from the political and procedural
history of the EPAct. Indeed, the EPAct's history is rich with
lessons about the politics and procedure of congressional energy
policymaking.
A. Place of Origin Matters
The first lesson to be learned from the EPAct's history is that
it matters whether the House or the Senate has the first cut at an
energy bill. For instance, Carter's 1977 energy bill sailed through
the House, passing just three months after President Carter had
presented it.2S6 After the bill passed the House, however, interest
groups began to mobilize; as a result, the legislation barely survived in the Senate. 87 In the Senate, individual members have a
large say in setting the agenda, have no general germaneness re288
striction on amendments, and possess the ability to filibuster;
individual Senators thus can pursue their home state's interests by
unilateral action, even though that action could ultimately weigh
down or even defeat legislation.2 8 9 A decision to split the Carter
bill into six separate bills in the Senate may well have been its
only savior.2 90 The EPAct, by contrast, was able to avoid many of
284. Energy Bill Surges Toward Enactment, supra note 114, at 231.
285. As Republicans prepare to take the reins of the 104th Congress, Senator Frank
Murkowski and Representative Don Young are poised to claim the Senate and House
Natural Resource Committees. Since both are strong proponents of ANWR and unabashed
anti-environmentalists, pro-ANWR drilling legislation is expected to come before the full
Congress. See Hugh Dellios, New Endangered Species: Laws Preserving Environment;
Outlook Grim for Greens Under GOP, CHI. TRIB., Nov. 20, 1994, at 14.
286. H.R. 8444, 95th Cong., 1st Sess. (1977); See Carter Energy Plan Fails To
Clear, 1977 CONG. Q. ALMANAC 708, 708-10.
287. See id. at 728-45.
288. See TIEFER, supra note 35, at 464-65.
289. See, e.g., supra notes 192-193 and accompanying text.
290. See generally ERic M. USLANER, SHALE BARREL POLITICS: ENERGY AND
LEGIsLATIvE LEADERSHIP 196 (1989).
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the problems that plagued the Carter bill in the Senate and went
29
through the Senate as a single bill rather than several measures. '
A different approach was taken with energy legislation under
the Bush administration. The final bill that became the EPAct was
not based on the Bush administration's proposals-indeed it contained measures which Bush had previously threatened to veto29 --but grew out of a history of committee deliberation. While in
theory the Senate is regarded as the deliberative chamber, deliberation on the bill that ultimately became the EPAct began in the
House. The House, reaching to create consensus, carefully crafted
many of H.R. 776's provisions in committee. 293 Further, the Senate-having already filibustered one bill, S. 1220, perhaps the "sacrificial lamb" of the energy policy debate-wanted to assure voters
that Senators would not pose any barriers to reform, especially in
an election year. The Senate had failed once and the political costs
of failing again would be high. The political incentives for any one
Senator to block and to significantly amend H.R. 776 were lower
than usual; Senator Rockefeller's success using filibuster to secure
the coal tax was the exception rather than the rule.
B. Streamlining Devices
A second lesson is that complex rules in the House are important in bringing interest-group legislation, such as energy bills, to
the floor. In 1977, complex, amendment-limiting rules were essential in preventing opponents of Carter's energy bill from loading it
down with last minute amendments and in resolving inter-committee disputes. 294 The rules accompanying H.R. 776 also limited the
number and subject matter of amendments, protected certain controversial provisions from amendments, and resolved many intercommittee disputes, particularly disputes between the Interior and
Insular Affairs and the Energy and Commerce Committees.
Although floor amendments ,were much more common in the
Senate, which did not adopt a resolution containing a "closed" rule,
the leadership effectively achieved the same amendment-limiting
291. See generally supra part II.
292. See supra note 33 and accompanying text.
293. See supra part II.B.-C.
294. See supra notes 142-144 and accompanying text.
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result by employing procedural devices such as the motion to table.295 The motion to table served a germaneness function when
such a requirement did not apply. Historically backed by strong
party loyalty in support of its offerer, 296 the motion to table provides a quick and non-controversial way for the leadership to dispose of threatening amendments; because motions to table take
precedence over most other matters under Senate rules and are
"decided without debate," this mechanism serves a streamlining
29
function on the otherwise disorderly Senate floor.
C. Technical Maneuvering
Third, out-of-the-ordinary technical procedural maneuvers were
important, although they do not succeed universally. For example,
while Johnston's attempt to bypass committee consideration by
invoking Rule XIV succeeded, his attempt to bypass the Finance
Committee by attaching H.R. 776 to an energy/water appropriations bill was quickly derailed.2 98 Similarly, Representative Vucanovich's motion to recommit the Conference Report with instructions was killed quickly. 299 If anything, such technical measures
were most successful when used in favor of the status quo and to
keep the bill on track. For example, Senator Bentsen, by raising a
point of order that Specter's proposed health care amendment violated the 1974 Budget Act, killed an attempt to divert the bill.3 00
Notably, marny of these "tricky" measures were attempted late in
the bill's history, suggesting a sort of desperation by their proponents as passage or failure of the bill seemed imminent. The mixed
success of such measures would suggest that members and leadership who wish to influence the content and fate of future energy
bills should stick to open and participatory legislative mechanisms.
295. See generally supra part IV.C.
296. See TEFER, supra note 35, at 664.
297. See id. at 666.
298. Compare supra part lI.A. with supra part I.B.
299. See supra notes 271-274 and accompanying text.
300. See supra notes 219-225 and accompanying text.
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D. Creating a Stake
A fourth lesson from the EPAct is the importance of conference in creating a stake in the outcome of the bill. The Conference
301
Committee had 131 members, nearly one-fourth of Congress.
Many of the members were drawn from committees that had jurisdiction over various sections of the bill and had assisted in its
drafting. 30 2 These negotiators had a "stake" in the final outcome
going into the Conference Committee and fought to keep the bill
together.
Moreover, the sheer size of the committee increased the capacity of negotiators to engage in a more deliberative search for
solutions that may have b~en overlooked by a smaller group and
to withstand strongly held but isolated opposition, from inside as
well as from outside the Conference. 303 While the inclusion of
many rather than of a privileged few in final negotiations meant
that conference would be drawn out-in the case of the EPAct,
over three weeks-it also worked to broaden the bill's support after
conference. Conference members developed stakes in the bill and
put aside their particular policy preferences in order to fight for the
legislative solution they had helped to create. A similar strategy of
inclusion worked in favor of passage of Carter's 1977 energy bill.
In 1977, the Speaker of the House appointed an ad hoc Energy
Task Force to coordinate the activities of the many committees
with jurisdiction over the bill.30 4 Members who have served on such
bodies are more loyal to the leadership of key roll call votes than
members who have never held such positions; undoubtedly, this
"strategy of inclusion" has a significant impact on a bill's chances
of passing.30 5
301. See supra notes 235-238 and accompanying text.
302. See Idelson, supra note 240, at 2710.
303. Cf. Orr, supra note 242.
304. See BARBARA SINCLAIR, MAJoRITY LEADERSHIP IN THE U.S. HousE 138-39
(1983). See also TIEFER, supra note 35, at 271.
305. TiaaR, supra note 35, at 271. This inclusive approach is also discussed in
USLANER, supra note 290, at 197.
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E. The Importance of Filibuster
Fifth, even though the EPAct was based on the House bill, the
Senate's filibuster mechanism was probably the single most
influential procedural factor affecting the content and fate of the
EPAct. S. 1220's defeat was attributable to a filibuster, as was
protection of Rockefeller's coal tax in the Senate-approved version
of H.R. 776.306 Fear of a filibuster over Yucca Mountain haunted
the various measures until the Conference Report's final passage.
As long as each Senator retains a filibuster right, the possibility of
filibuster is likely to continue to threaten comprehensive interest
37
group legislation, including consideration of energy issues.
The threat of filibuster on a motioii to proceed could work to
the advantage of a bill's opponent to the extent that it allows "a
double filibuster on the motion to proceed and on the bill itself,
with separate opportunities for precloture filibuster, separate opportunities to defeat the cloture vote, and separate clotured time limits
on the vote."308 On the other hand, filibusters on motions to proceed
are prone to failure. Would-be offerers of amendments may want
to let a bill come up so that they can amend it, rather than portray
themselves as too obstructionist to even discuss a bill.309 As Tiefer
observes, many supporters of filibuster forgo it on a motion to
proceed, as they are likely to fail and, if they do, there is no ready
310
means for post-cloture filibuster on a motion to proceed.
Despite these low chances for a bill's opponents to successfully
filibuster on a motion to proceed, in consideration of the EPAct the
two significant filibuster battles--on S. 122031 and H.R. 776312 -were
on motions to proceed, rather than on the substantive bills. There
306. See supra parts I, IV.B.
307. Senator Harkin, reacting to Republican usage of the filibuster to kill many
Clinton administration proposals in the 103d Congress, has proposed a rule that would
keep the 60-vote rule on an initial cloture motion but would gradually ratchet the number
down for subsequent cloture votes, so that a simple majority could ultimately pass
legislation. See Helen Dewar, Harkin Targets a Senate Tradition; lowan is Set to Launch
Drive to Repeal the FilibusterRule, WASH. POST, Nov. 20, 1994, at A10.
308. rIEFER, supra note 35, at 758.
309. For example, following the successful filibuster on S. 1220, led primarily by
Democrats, Republicans made "charges that they [the Democrats] would not even debate
[a bill] in the Senate:' Holly Idelson, Lingering ControversiesStall Rewrite of Energy Bill,
49 CONG. Q. WKLY. REP. 3274, 3275 (1991).
310. See TIEFER, supra note 35, at 758.
311. See supra part I.
312. See supra part IV.1B.
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may be a strategic reason for this anomaly. First, the Senate's rule
against non-germaneness, normally applicable once cloture has been
invoked, does not apply if cloture has been invoked on a motion
to proceed.313 Consequently, if the leadership anticipates filibuster
on a substantive bill, they can move for cloture early and encourage
filibuster on the motion to proceed in order to test the strength of
the filibusterers' coalition, and if cloture is approved, the leadership
still retains the flexibility to propose non-germane amendments to
keep the filibusterers' coalition weak. Proponents of filibuster might
not object to early filibuster despite its tendency to fail, because
even if cloture is invoked on the motion to proceed, filibuster
proponents also retain the flexibility to offer controversial, non-germane amendments that potentially dissolve support for a bill during its substantive consideration. Proponents of filibuster can signal
on the motion to proceed that their threats are more than just talk,
increasing their bargaining power with the leadership and a bill's
supporters. In addition, as Tiefer observes, filibuster on a motion
to proceed "allow[s] a swing group to give something to both
sides" while not necessarily allowing a bill to go through.3 14 Despite the strategic opportunities, in recent years the Senate, hoping
to avoid redundant filibusters, has considered measures to make the
315
motion to proceed non-debatable.
There are, however, three ways in which congressional leaders
can limit the ability of filibuster to influence the content and fate
of energy legislation. First, filibuster can have positive strategic
effects to the extent that, as with any legislation, a defeat in the
Senate may encourage the House to act. For example, S. 1220
served as a "sacrificial lamb" in the legislative process; it became
a reminder to the House to work more cooperatively than the
Senate had done and a goad to the Senate to keep members in line
on a new, streamlined bill. The problem with a strategy of "staged"
filibuster, of course, is that it is manipulative and deceptive and
thus cannot be used repeatedly. Most Senators seemed to believe
that S.1220 was "for real;" the more "sacrificial lambs" the lead313. See supra note 208 and accompanying text.
314. TIEFER, supra note 35, at 758.
315. The 1984 Quayle task force on Senate reform, for example, recommended
"providing for a two hour time limit on the motion to proceed:' STAFF OF TEMPORARY
SELECT COMMITTEE To STUDY THE SENATE COMMITTEE SYSTEM, 98TH CONG., 2D SESS.,
REPORT TOGETHER WITH PROPOSED RESOLUTIONS 16 (Comm. Print 1984).
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ership tries to push through, the less members will be affected by
the leadership's failures. Second, encouraging filibuster on a motion to proceed could pre-empt filibuster threats by testing the
strength of the filibusterers' coalition while retaining the flexibility
to offer non-germane amendments to dilute opposition during debate on a bill. A third way to mitigate the negative influence of
filibuster is to increase the participation in committee, particularily
in conference committee, of Senate members from states with particularly strong interests in the bill. Members will be less likely to
filibuster if they have a stake in the bill before the Senate.
It should be noted, though, that modifications to Senate rules
during the 1980s allowed the Senate to avoid the post-cloture filibuster which had threatened Carter's bill. Post-cloture filibuster
prolonged the Senate's consideration of Carter's energy program.
Even though cloture on the Carter bill had passed seventy-seven to
seventeen, two Senators opposed to natural gas deregulation called
up over 500 amendments and demanded roll-call votes on each
one. 316 An all-night session was followed by several more days of
filibustering, which finally ended with a controversial ruling by the
Majority Leader.317 In 1979, the Senate agreed to a 100 hour cap
on post-cloture filibuster; in 1983, the Senate trimmed this cap to
thirty hours. 318 Absent such reforms, the Nevada delegation might
well have engaged in post-cloture tactics following passage of the
conference report, or Senator Wallop could have attempted such a
tactic in response to Rockefeller's coal tax. With a post-cloture
filibuster time-cap in place, however, the Senate moved to proceed
with consideration of the EPAct in a comparatively orderly and
quick manner following cloture.
F Preparingfor the Next Crisis
Sixth, it has traditionally taken a crisis of some sort to push
new energy legislation through Congress. Carter's 1977 energy
strategy, for example, was a reaction to the realization that the
disparity between U.S. consumption and supply of oil was dramatically increasing U.S. vulnerability to embargo and political black316. TEFER, supra note 35, at 731.
317. See id.
318. See id. at 724.
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mail in the international markets.3 19 Similarly, the EPAct was driven
by U.S. military involvement in the Gulf crisis, which raised public
concern regarding U.S. dependence on foreign oil. If the past is
any indication of future legislative issues, Congress will be forced,
most probably by international crises, to revisit energy policy in
the coming decades. Legislation in reaction to a crisis, however,
does not guarantee the public a comprehensive, sound, and sustainable energy policy. When Congress legislates in reaction to crisis,
the core majority support for a bill is stronger, but this also allows
special interests to affect a bill's substance more than they normally would. In the case of the EPAct, the cost qf legislative
expedience in reaction to crisis was a reduction in deliberation; this
tradeoff between expediency and deliberation was particularly evident in the differing'approaches of the Senate and House to developing legislative proposals. It would be prudent for the leadership
and committee chairs in both the Senate and the House to begin
deliberation and develop consensus on important pending issues,
such as CAFE, ANWR, and long-term conservation measures, in
times of relative calm.
G. Making Legislation by Subtraction
The fundamental strategy of the leadership in the House and
the Senate in passing the EPAct was to create consensus by subtraction, not addition. When an initial package is fairly comprehensive, as was the first Senate bill, S. 1220, and where a crisis is
pushing the package, as was the Gulf War, such a strategy might
succeed in producing the second-best legislative result. Such strategies can also impede resolution of the most controversial-and
most important-issues. Such was the case with the EPAct, which
is far from comprehensive in its approach; despite its title, the
EPAct does not address ANWR, CAFE, or long-term conservation
sufficiently.
Future energy legislation need not suffer this fate. The leadership in the House, through the Rules Committee, can protect certain controversial but important issues through the use of complex
rules. By creating a stake in a bill, best achieved through strategies
319. See Carter Energy Plan Fails to Clear, supra note 286, at 708.
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such as broad appointment of members to conference, the encouragement of filibuster on a motion to proceed, and amendments
designed to pre-empt filibuster during debate, the leadership can
minimize the power of filibuster to kill a bill. Only if the leadership
is willing to mitigate the power of members in both chambers to
subtract from a bill will Congress be able to produce legislation
which is truly "Energy made in America." 320 Regrettably, we will
have to look to future legislation, not to the EPAct, for such an
approach.
320. Idelson, supra note 258, at 3033 (quoting Senator Johnston).